R.N. Aggarwal, J.
(1) By this Petition under.Article 226 of the Constitution of India Shri D.D. Sansi, the petitioner herein, has challenged the legality and validity of the order dated 23rd June 1976 by the Director General of Civil Aviation removing the petitioner from the service.
(2) The facts giving rise to this petition needs to be stated in some detail. The petitioner at the relevant time was working as Assistant Aircraft Inspector in the Civil Aviation department at Delhi. On 16th January 1974 there was an air-crash at Karnal Aerodrome in Haryana. The petitioner was ordered to hold an inquiry into the accident. The petitioner was required to submit his preliminary report within one week and. the final report within a period of four weeks. The petitioner reached Karnal on 17th January and held an inquiry into the accident. The petitioner recorded statements of a number of persons including that of Captain Roddey. who was the Chief Flying Instructor at Flying Club Karnal. A trainee pilot Rakesh Sehgal was seriously injured in the crash. The petitioner after.completing the inquiry returned to Delhi on 19th January. He submitted his preliminary report on 25th January 1974. The petitioner in his preliminary report found that Capt. Roddey, Chief Flying Instructor of the Flying Club was also on board although this. fact had been denied by many witnesses including Capt. Roddey. The petitioner also found that the wreckage had been shifted from its original position with the object of misguiding the investigator and eliminating the presence of Capt. Roddey on the controls. The petitioner further held that Capt. Roddey had tampered with the records of the Flying Club after the accident. The petitioner made the following recommendations : 'Immediate Action and Recommendations :
1.I feel the continuance of Capt. Roddey as Chief Flying Instructor of the Club is not conducive for the air safety.
2.Capt. Roddey has been found causing obstruction to the proceedings of the investigation and tampering with the records in violation of Rule 76 of the Aircraft Rules.
3. In view of the fact established that Capt. Roddey was the pilot in-command of the crashed aircraft;4. Capt. Roddey be suspended from flying in accordance with the Circular No.8-9/47/L(l) dated 21st January, 1964 and under Rule 19 and 76 of the Aircraft Rules.
(3) On 28th January 1974 at 2 p.m. Capt. Roddey made a report (Ex. P. 7) to the Superintendent 'of Police (CBI) alleging that on 17th January 1974 Shri D.D. Sansi after recording his statement in his office at the Aerodrome had verbally asked him to see him at his residence on 25th January 1974, that as desired by Shri Sansi he met Shri Sansi at his residence at D.D.A flat in Safdarjung Development area on 25th January at 7.30 hours and Shri Sansi told him that the trainee-pilot Shri Rakesh Sehgal in his statement had stated that he (Capt. Roddey) was also on board the aircraft at the time of the accident, that Shri Sansi told him that he may also get in trouble. that he told Shri Sansi that the trainee-pilot was all alone in the plane at the time of. the accident and no blame should come on him, that Shri Sansi demanded a bribe of Rs. 3000.00 for helping him in the aircraft accident, that he showed his inability to arrange Rs. 3000.00 that ultimately he agreed to give Rs. 500l- and a bottle of whisky in the first instance as part payment which Shri sansi was to receive from him that day, that is, 28th January 1974 after .18 hows.
(4) On the above report a raid party was organized and Capt. Roddey was asked to pass the agreed bribe money and a bottle of whisky to Sansi. The arrangement 'nude was that Sansi would go alone and give the bribe money and. the bottle of whisky to Sansi and in case he did not return .within 5 minutes-of his,going , the house of Sansi it would be taken that the bribe may has been passed on and on that the raid party would enter the house of Shri Sansi. The raid party went to the house of Sansi at about ..p.m.Shri Sansi resides on the first floor in the D.D.A. flat Safdarjung Development Area. Capt. Roddey went to the house of Sansi. He was told by Mrs. Sansi that Shri Sansi was not in the house. Mrs. Sansi told Capt. Roddey that if he wanted to leave anything he could do so but Capt. Roddey told Mrs. Sansi that he would like to meet Sansi personally. The party waited near the house of Sansi. At about 8 p.m. Sansi was seen coming on a scooter. After Sansi had gone inside the house Capt..Roddey followed him. Capt. Roddey on entering the house was led into the drawing room and thereafter to the bed-room where Sansi was sitting in the wrapped in a quilt. Roddey gave the bottle of whisky which sansi asked his wife to put on the table. Thereafter Roddey gave five currency notes of Rs. 100.00 each to Sansi who after counting them said the money is not enough as he has also to pay part of the money to his officer. Roddey said to Sansi in Hindi Aap Yeh To Rakho Bakee Ka Intazam Kar DUNGA. After waiting for five minutes the raid party entered the house of Sansi and the currency notes were found in the right hand fist of Sansi. The Deputy Superintendent of Police seized the currency notes from the hand of Sansi. The house of Sansi was also searched and some liquor bottles and a 100 American dollar note were recovered.
(5) Sansi was suspended and an inquiry was instituted against him. The charge framed against Sansi was that Sansi had demanded a sum of Rs. 3000.00 from Capt. Roddey and accepted a sum of Rs. 500.00 and a bottle of diplomatic delux whisky at his residence on 28th January 1974 at about 8.00 p.m. The statement of imputations of misconduct on the basis of which the charge was framed stated that Sansi had solicited a sum of Rs. 3000.00 from Capt. Roddey and asked him to meet him at his residence at New Delhi on 25th January 1974 where the demand of illegal gratification of Rs. 3000.00 was repeated by Sansi. But Capt. Roddey expressed his inability to arrange Rs. 3000.00 in a lump-sum on which Sansi agreed to accept Rs. 500.00 and a bottle of whisky as part payment towards the said demand and Sansi accepted the sum of Rs. 500.00 and a bottle of whisky from Capt. Roddey at his residence on 28th January 1974, at about 8.30 p.m.
(6) Shri Ramarnurthi, the Commissioner for Departmental Enquiries, was appointed to hold the inquiry. The department produced its evidence. On the conclusion of the evidence produced by the department the petitioner submitted a list of 28 witnesses for being examined in defense. I may point out here that Capt. Roddey in his statement before the Enquiry Officer stated that Sansi after finishing his inquiry at Karnal had asked him to report to him (Sansi) at his residence, Safdarjung Development Area, New Delhi, on 28th January 1974, that according to instructions of Sansi he went to his residence on 28th January 1974 at 7 a.m., that Sansi in that meeting told him that the matter was serious and that he was implicated in the accident instead of Rakesh Sehgal, trainee pilot, that on hearing of this he became nervous, that Sansi told him not to worry and demanded Rs. 3000.00 as bribe and some bottles of whisky to favor him in the case, that he told Sansi that he could not arrange Rs. 3000.00 in lump-sum but offered to pay him Rs. 500.00 in the first instance and the balance money later on, that Sansi agreed to this arrangement and asked him to bring money and bottle of whisky and meet him at his residence the same day between 6 and 7 in the evening. I may remind here that in the report to the police he had stated that Sansi had asked him to meet him at his residence on 25th January and he had met Sansi at his residence on 25th January and Sansi had agreed to accept Rs. 500.00 and a bottle of whisky which he had asked him to bring to his house on 28th January at 6 p.m.
(7) Shri Sansi desired to examine in his defense Shri O.P. Verma, Chief Engineer, Delhi Flying Club, Safdarjung Airport, New Delhi. It was specified in the list of witnesses that Shri Verma was to bring along with him flight authorisation and other flight documents of flights on 28th January 1974. Sansi also cited some witnesses residing on the ground-floor to prove that when Rs. 500.00 were offered to him by Capt. Roddey he had reprimanded Capt. Roddey and asked him to get out. Sansi also summoned some witnesses with record to prove that earlier also in 1972 he had held an inquiry against Capt. Roddey and made a report against him consequent to which the flying license of Roddey was suspended. The Enquiry Officer wanted Sansi to indicate the relevance of the witnesses summoned by him. Sansi was asked to file a revised list of witnesses by 17th July 1975. On 16th July Sansi filed a revised list of witnesses (pages 71-72). As against the name of Shri O.P. Verma Sansi wrote that he wanted to prove from the said witness that Roddey did not meet him on the morning of 28th January 1974. As against witness at Seriall No. 25 the petitioner wrote that he wanted to establish Roddey's enmity towards him since 1972 and as against the witness at Seriall No. 28 the petitioner wrote that he wanted to establish the character of the complainant Capt. Roddey. I may add here that Capt. Roddey was originally in the Air Force and the allegation of the petitioner is that Capt. Roddey was cashiered in the year about 1969 and also he was sentenced to imprisonment.
(8) On 17th July 1975 the inquiry officer passed an order permitting the petitioner to examine only Sri G.R. Kathpalia and Shri A.K. Sarkar. The request for the examination of the remaining witnesses was rejected. The petitioner also had requested the inquiry officer for permission to file a written statement but this was also not accepted.
(9) The inquiry officer submitted his report on 29th August 1975 finding, that the charge against Shri D.D. Sansi is proved. The Director General of Civil Aviation tentatively agreed with the report of the inquiry officer and served a notice on the petitioner to show cause why a penalty of dismissal from service be not imposed on him.
(10) The petitioner submitted a. detailed representation against the show cause notice. The petitioner regarding the alleged meeting of Capt. 'Roddey with him on,25th January 1974 and/or 28th January 1974 when he is alleged to have made demand :of bribe stated as under : I was advised that in order to gain some first hand knowledge of air . craft slipping and hitting the ground I should arrange a flight to stimulate these conditions. An appointment had, thereforee, been made 0n,24-1-1974 with the Chief Engineer, Delhi Flying Club for such a, flight on the morning of 28-1-1974. In accordance with this appointment, I was to be at the flying club for such a flight on the morning of 28-1-1974 before 7.00 hrs. and I actually went there at 6.45 hrs. I could not thus possibly have asked Mr. Roddey to meet me, and Mr. Roddey could not have possibly met me, at my residence in the morning of 28th January 1974. The records of the Flying Club will bear.out these facts. I may just note here that the Enquiry Officer refused to call my witness Shri O.P. Verma listed at S. No. 13 of the list of witnesses and documents of the Delhi Flying Club to prove this fact of vital importance in the case. I reached my office direct from the Flying Club and after finishing my office in the evening went straight to attend a wedding at Karol bagh (the invitation to the wedding had been accepted by me on 22-1-1974). The invitation card from Shri B.K-. Talwar, a departmental officer is enclosed. If desired he may now be questioned on this point or Shri B.S. Rao, Deputy Director at Hq who also attended the wedding. Thereafter, I visited my sister's house at Banglow Road, Kamla Nagar, from where I reached home at about 20.15 hours. A child from a family living downstairs, to whom I was attached, came up with me. Mrs. Ram Lal, the mother of the child was cited as a defense witness at S. No. 15 of the list. I would not have gone through this routine of the day if I had asked Mr. Roddey to see me that day at my residence for handing over a bribe to me.
(11) The petitioner also pointed out in the representation the discrepancy in the first report and the statement before the Enquiry Officer regarding the alleged date of Roddey meeting him at his residence (Capt. Roddey had in the first report stated that he had met Sansi at his residence on the morning of 25th January 1974 whereas before the Enquiry Officer he stated that he had met him on the morning of 28th January 1974). The petitioner also pointed out in the representation that he had submitted the report on 25th January 1974 and thereafter the question of his demanding or accepting the bribe from Roddey did not arise.
(12) The disciplinary authority in a brief order without adverting to any of the points raised in the representation passed the order removing the petitioner from service.
(13) The petitioner preferred an appeal to the President of India. In the appeal he raised almost all the points that he had raised earlier in his representation to the disciplinary authority (pages 135 to 172). The President referred the matter for advice to the Union Public Service Commission. The Union Public Service Commission after considering the representation gave the advice that the charged officer is not a fit person to be continued in the government service. The President following the advice given by the Union Public Service Commission rejected the appeal of the petitioner.
(14) I have heard Shri Lokur, learned counsel for the petitioner, and Shri C.L. Chaudhsry, on behalf of the Union of India. I have also carefully gone through the record. [I find that a serious prejudice has been caused to the petitioner by the refusal of the Enquiry Officer to summon some of the witnesses sought to be examined by the petitioner in his defense. A serious miscarriage of justice has also occurred because of the failure on the part of the disciplinary authority and the appellate authority to consider some of the important aspects of the case. The said non-consideration of important material further shows non-application of mind.
(15) The petitioner was charged with a serious allegation of accepting bribe. Instead of trial by the courts of law the petitioner has been tried departmentally. Whether it be a trial before a court of law or a departmental enquiry certain basic and well recognised procedural rules have to be followed
(16) (AN accused has a fundamental right to prove his innocence. After prosecution has led its evidence an accused has to be given full opportunity to produce evidence in his defense. The court or an Enquiry Officer can scrutinise the list of witnesses submitted by an accused and refuse to summon witnesses in case he finds the evidence to be given by a witness irrelevant to the inquiry. The decision to summon or refuse to summon witnesses has to be judicial and not arbitrary or whimsical.
(17) On going through the record I find that the decision of the Enquiry Officer refusing to summon the witnesses, especially those mentioned at Seriall Nos. 13, 14, 15, 16, 25 and 28 has resulted in great prejudice to the petitioner. Capt. Roddey in his report to the police (Ex. P. 7) had stated that Sansi had asked him at Karnal to meet him at his residence on 25th January and that as desired by Sansi he had gone and met Sansi at his residence in the morning of 25th January and that it was there that Sansi had asked for a bribe of Rs. 3000.00 to show him favor in the case and agreed in the first instance to accept Rs. 500.00 and a bottle of whisky which was to be given at his residence on 28th January at 6 p.m. Capt. Roddey in his statement before the Enquiry Officer shifted hi;' stand and stated that Sansi after the inquiry was over at Karnal had asked him to meet him at his residence on 28th January and he had met Sansi at his house on 28th January at 7 a.m. and it was then that Sansi had asked for the bribe and agreed to accept Rs. 500.00 and a bottle of whisky which was to be given to him the same day between 6 and 7 p.m. at his residence.
(18) The petitioner summoned Shri 0.P. Verma, Chief Engineer, Delhi Flying Club with flight documents of flights on 28th January 1974 (serial No. 13). The petitioner in his revised list clarified that he was summoning the said witness to prove that Capt. Roddey had not met him on the morning of 28th January This witness by no stretch of imagination could be said to be irrelevant to the charge under inquiry.
(19) Mr. Chaudhary, learned counsel, for the respondents, contended that the petitioner had not put to Capt. Roddey that his statement that he met him at his residence on 28th morning is false and further that at the alleged time he was not in his house and he had gone to the Flying Club and, thereforee, the refusal by the Enquiry Officer to examine Shri 0. P. Verma has not resulted in any prejudice to the petitioner. Shri Chaudhary also contended that in the revised list the petitioner had not stated that he wanted to prove that he had gone to the Flying Club in the morning of 28th January and the statement of Roddey that he had met him at his residence on the morning of 28th January is false. It is true that in the list of witnesses the petitioner has not in so many words stated that he wanted to prove from the statement of Shri Verma that on the morning of 28th January he was at the Flying Club. The Enquiry Officer could easily have obtained further clarification from the petitioner regarding the witness Shri Verma. To my mind, the petitioner had given sufficient indication of the purpose of his examining Shri Verma in the revised list of witnesses submitted by him to the Enquiry Officer. Be that as it may, the petitioner had in his representation to the show cause notice as well as in the memorandum of appeal to the President stated in clear and unambiguous language that on the morning of 28th January 1974 he had gone to the flying club at 6.45 a.m. and, thereforee, he could not possibly be at his house at 7 a.m. and his visit to the flying club would be borne out from the records of the flying club. The relevant portion of the representation in this regard has been reproduced by me earlier. The disciplinary authority while passing the order paid no heed to this part of the representation made by the petitioner. I have gone through the advice of the Union Public Service Commission and I find that the Union Public Service Commission also omitted to consider this part of the representation of the petitioner. The relevant portion of the advice given by the Union Public Service Commission regarding the complaint of the petitioner that he had not been given opportunity to examine his witnesses reads as under : The Commission have given careful thought to this procedural objection raised by the charged officer. They do not think that the disallowance of the 26 witnesses and absence of a record of full reasons for it is a serious flaw vitiating the proceedings. The Enquiry Officer had already told the charged officer that he would allow only those witnesses who had a direct bearing on the incident under enquiry. The witnesses listed by the charged officer were merely meant to cast doubt on the reputation and trustworthiness of Capt. Roddey, the complainant. This had no bearing upon whether the charged officer actually accepted the bribe on 28-1-74 or not. In any case, the enquiry report has conceded that Capt. Roddey had a colorful past. In can, thereforee, be said that disallowance of the 26 witnesses has not adversely affected the defense case in any manner.
(20) The above would show that the Union Public Service Commission has missed the real grievance of the petitioner. The petitioner had clearly stated that he wanted to examine the witness at Seriall No. 13 to prove that he was not in his house at the time Capt. Roddey is alleged to have met him at his residence on the morning of 28th January and, thereforee, his statement/allegation that he had met the petitioner on the morning of 28th January when he had demanded the bribe is false. This defense of the petitioner, if proved, would have shattered the complaint ofCapt. Roddey.
(21) I have earlier pointed out that the case of Capt. Roddey in the first report Ex. P-7 was that he had met Sansi at his house on the morning of 25th January 1974 when he had demanded a bribe of Rs. 3000.00 he had agreed to pay Rs. 500.00 and a bottle of whisky which was to be given to Sansi at his residence on 28th January at 6 a.m. This is also the charge against the petitioner. Capt. Roddey in his statement before the Enquiry Officer shifted the date from 25th January to 28th January. The discrepancy in the two statements was put to Capt. Roddey and he stated that his statement that he had met Sansi at his residence on the 28th January was correct. There could be no doubt that Capt. Roddey has made discrepant statements on a material point. I find that neither the Enquiry Officer nor the disciplinary authority nor the appellate authority have taken notice of this infirmity.
(22) At this place it will be proper to notice that on 25th January 1974 the petitioner had submitted his preliminary report which was totally against Capt. Roddey. If Capt. Roddey had met the petitioner on the morning of 25th January and the petitioner had agreed to take a bribe to show a favor to Capt. Roddey the petitioner would have delayed the sending of the report by a day or so and probably insisted on the payment of the bribe money that very day. The shifting of the date from 25th January to 28th January seems to be deliberate. The Enquiry Officer has observed that the petitioner had probably agreed to take bribe on 28th January on the understanding that he would help him in the final report. The petitioner having submitted a very damaging report against Capt. Roddey on 25th January I find it highly improbable that the petitioner would have either demanded or accepted the bribe from Capt. Roddey after 25th January 1974.
(23) The petitioner had before the Enquiry Officer as well as in his representations to the disciplinary authority and the appellate authority contended that on 25th January he had submitted the preliminary report which was highly damaging to Capt. Roddey and, thereforee, the question of this demanding and accepting any bribe from Roddey on 28th January did not arise. The Enquiry Officer rejected this contention holding that it is not. relevant. Paragraph 14 of the enquiry report deals with this contention of the petitioner and it reads as under :
(24) I fail to understand how this important circumstance has been held to be not relevant. The petitioner is alleged to have demanded and accepted the bribe to show favor to Capt. Roddey. If there be material on record throwing doubt on the probability of the prosecution case that material must be put in the scale before taking a decision. The fact that the petitioner had on 25th January 1974 submitted a preliminary report which was totally against Capt. Roddey would be relevant in determining whether the petitioner could in that background demand and accept bribe. The bribe is always given to obtain some benefit or advantage. If the alleged taker of the bribe was not in a position to show any favor the question would arise whether the charge of giving bribe was true or not.
(25) The disciplinary authority and the appellate authority completely ignored this part of the case of the petitioner. Non-consideration of this aspect of the case, in my view, would show non-application of mind and it would introduce a serious infirmity in the decision taken by the concerned authorities.
(26) Another aspect, which I will briefly refer to, is that earlier in 1972 also the petitioner had held an inquiry in which Capt. Roddey was involved and the petitioner had given a report which had resulted in the suspension of the license of Capt. Roddey. This circumstance has also been ignored by the disciplinary authority as well as the appellate authority. This circumstance is relevant in determining the motive for Capt. Roddey to implicate the petitioner falsely.
(27) For the reasons stated I hold that denial of opportunity to the petitioner to produce his evidence and non-consideration of some of the important circumstances brought on the record have vitiated the inquiry. The next serious question that follows is whether the petitioner should be allowed to face the ordeal of a fresh inquiry after a lapse of 10 years. The petitioner was due for retirement in 1976. He was removed from service just a few months before he was to retire. Looking to all the circumstances surrounding this case I am of the view that no fresh inquiry should be permitted.
(28) In the result I allow the petition and quash the order dated 23rd June 1976 removing the petitioner from service. The petitioner would be entitled to all the consequential benefits. The respondents shall settle and pay the amounts that are found due to the petitioner within six months from today. The petitioner shall have the costs of the petition. Counsel fee is fixed at Rs. 1000.00.